How does the court approach the assessment and adjustment of property between the parties?

16/07/2014

It is now well established that the preferred approach to the court exercising its broad discretionary powers pursuant to s.79 of the Family Law Act involves a four-step approach.

Those steps may be briefly described as follows:

1.The Court is required to identify and value all of the relevant property of the parties, which includes all property irrespective of its source or time of acquisition.  Such value is usually determined as at the date of trial (“step 1.”);

2.The Court is required to have regard to the direct and indirect financial and non-financial contributions by or on behalf of each of the parties to the marriage including contributions as a homemaker and parent. Such contributions are to the marriage and are not limited to the property then in existence. The Court should come to a determination as to a proper apportionment between the parties, usually in percentage terms (“step 2”);

3.The Court is then required to have regard to s.79 (4) (d) to (g), or such of those as are relevant.  In particular, by sub-paragraph (e) this incorporates those matters listed in s.75 (2).  The Court is then required after having regard to those matters, to determine what adjustment, if any, should be made to the apportionment referred to above (“step 3”);

4.Having made the above adjustments make an assessment whether the order proposed is just and equitable (“step 4”).

The Court will not make an order unless it is satisfied that it is just and equitable to do so.  The discretion conferred upon Judges in the Family Court pursuant to s.79 of the Act is very broad.  Whilst undoubtedly there have been many decisions under the Act, the extent to which one can look at any prior decision and use it as a guide to how another Judge ought or will approach the exercise of discretion in another case is particularly limited.  Such is the nature of a judicial discretion.  There are two approaches to determining contribution.  One is the asset by asset approach and the alternative is the global approach.  The global approach is the approach more generally preferred by Family Court Judges.  Unless there are particular reasons for doing so, this is the approach most Family Court Judges will adopt.  There is no significant reason in this case why a global approach should not be adopted in determining the overall result.

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